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Office of Special Counsel settlement re immigrant discrimination

Recently, the Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices (‘OSC’) entered into a settlement agreement with a landscaping company following allegations of immigrant discrimination. The DOJ lawsuit against the company concerned corporate practices requiring Lawful Permanent Residents (green card holders) to produce their green cards in order to prove their work authorization– a practice in direct violation of the law [Immigration and Nationality Act (INA) Section 274B / 8 U.S.C. Section 1324b(a)(6)].

The OSC investigation concluded the landscaping company required Lawful Permanent Residents provide their green cards in order to prove work authorization in the employment verification process whereas US citizens could select whatever valid documentation they wanted to demonstrate work authorization. The resulting settlement requires the company pay thousands of dollars in civil penalties, undertake training on the anti-discrimination provision of the INA, and undergo monitoring and reporting.

The OSC is responsible for enforcing the federal anti-discrimination provision of the INA. This includes investigating and enforcing the anti-discrimination laws which prohibit citizenship status and national origin discrimination in hiring, firing, recruitment; document abuse, such as unfair documentary practices during the employment verification process/Form I-9; retaliation or intimidation. Specifically, the anti-discrimination provision of the INA prohibits employers from placing additional documentary burdens on employees authorized to work because of their citizenship or immigration status.

The Form I-9 requires the employee to submit documentation verifying their identity and authorization to work in the United States. The Form includes lists of documents the employee may use to satisfy the requirements and it is the employee’s choice alone as to which documents they elect to submit. For example, a Lawful Permanent Resident is not required to submit their green card to satisfy the Form I-9 employment verification requirements; rather, the Lawful Permanent Resident may elect to submit any of the documents/permissible combination of documents listed on the Form I-9 to establish their employment authorization (no different from a US Citizen completing the Form I-9). Requiring certain employees to produce unnecessary documentation based on their citizenship or immigration status is discriminatory and actionable.

It is important for employers to remember that Lawful Permanent Residents are issued green cards and have authorization to live and work in the United States permanently. While the green card generally contains an expiration date, the expiration of the green card does not indicate the holder has lost his or her permanent resident status in the United States. In other words, simply because the green card expires does not mean the individual has lost their right to work in the US. However, a Lawful Permanent Resident cannot use an expired green card for Form I-9 employment verification purposes; generally, an employer may not accept expired documents in the Form I-9 process.

The recent OSC settlements are a reminder to employers across the country of the employment verification requirements and the consequences for engaging in discriminatory practices. The OSC is committed to protecting all individuals authorized to work in the US from discriminatory practices and this case illustrates they will vigorously investigate and enforce the anti-discrimination provision of the INA.